On the Nature and Rationale of Property Offences

Joint Criminal Enterprise

“…The decisive element is the initial attack deliberately done with a view to wrong the victim; it changes the defendant's normative position in relation to consequences that might otherwise be ascribed to chance. 105 In joint enterprise cases the wrong which so changes S's normative position is the agreement or confederacy with P. 106 It exposes S to liability for crimes committed by P, because '[S's] new status has moral signi¢cance: [he] associates [him]self with the conduct of the other members of the group in a way that the mere aider and abettor, who remains an independent character throughout the episode, does not . .…”

“…As such, joint enterprise doctrines impose a form of collective responsibility, predicated on membership of the unlawful concert'. 107 At ¢rst sight, this is an attractive rationale; it seems capable of accounting for S's being liable for criminal conduct (which he neither caused 108 nor intended) by linking such conduct to S's previous intentional, wrongful and culpable commitment to criminal activity. Liability for one o¡ence (crime B) is attributed on the basis of moral responsibility for another o¡ence (crime A).…”

“…Simester and Sullivan argue that the crucial element which changes S's position vis-a' -vis the criminal law is the unlawful 'confederation', the joint criminal enterprise as such. 111 Three objections may be raised against such an assertion. First, if the essence of joint criminal ventures, as is unanimously asserted, are the twin-requirements of 'shared purpose' and 'collaboration', then it is di⁄cult to see how they can found the basis of liability for criminal conduct in which they are conspicuously absent: in cases such as we are concerned with here, P commits an additional or more serious o¡ence than S intended to be a party to, and P does so alone (albeit during the course of criminal activity in which P and S have worked together).…”

The Limits of the Harm Principle

“…Compare the earlier discussion of the economic account of harm. See also Simester and Sullivan (2005) who locate the criminal nature of theft not in the wrong or the harm to the particular victim, but in the damage that widespread theft would cause to the regime of property in general. 54 Contrast Marshall and Duff (1998, pp.…”

“…77-81). For a more subtle version that does not explicitly identify itself as economic analysis, seeSimester and Sullivan (2005). 6 I accept, for the sake of argument, that it is possible both in principle and practice to construct an X that measures an aggregate of everyone's interests, though there are good reasons to doubt this.…”